February 13, 2008

Antonin Scalia lets slip a quote that will enhance the loathing among those who loathe him but that others will easily guess comes from a discussion of the "ticking time-bomb" hypothetical.

The whole context, with audio and transcript, is at the link. Scalia is making the point that Bill Clinton, among many others, has made:

BBC: It’s a question that’s been raised by Alan Derschowitz and other people — this idea of ticking bomb torture. It’s predicated on the basis that you got a plane with nuclear weapons flying toward the White House, you happen to have in your possession — hooray! — the person that has the key information to put everything right, and you stick a needle under his fingernail — you get the answer — and that should be allowed?

SCALIA: And you think it shouldn’t?

BBC: All I’m saying about it, is that it’s a bizarre scenario, because it’s very unlikely that you’re going to have the one person that can give you that information and so if you use that as an excuse to permit torture then perhaps that’s a dangerous thing.

It's an old problem, and I've heard it discussed many times, and frankly what surpises me is not what Scalia said but how smart and articulate the BBC interviewer is. (Here's the whole interview, and you can see the interviewer's name is Clive Coleman.)

It's not just the classy British accent — which so often befogs the minds of Americans. It's the fast, articulate speech, the way he's unfazed when the Supreme Court Justice strikes at him with a question, and his instant formulation of a pithy and cogent response. The typical American journalist would harumph something about who's the interviewer and who's the interviewee.

"You got a plane with nuclear weapons flying towards the White House" and you have in custody someone who can stop it....

No, no rough stuff for him. Let a million die in D.C... And that's just from the first nuclear weapon the plane drops.

(Scalia also noted in the interview the seeming illogic of the US Constitution which forbids indefinite prison terms yet allows a judge to indefinitely lock up a witness to compel him to testify, and Americans accept that.)

This is another area I part ways with "conservatives." Talk about a slippery slope....

Yesterday I saw a video of a paraplegic rolled out of his wheel chair by a cop. And it seems tasering has become the first option for many police officers. Hell, why not torture?

My opinion, if you're willing to take the noble step to torture someone to save lives then you should be willing to to your noble time in prison. I think I saw Penn of "Penn & Teller" say basically the same thing.

Is there anything he says here that Posner hasn't couched in more pristinely economic terms?

Out of curiosity: TP characterize the audio as "Scalia defend[ing] torture, claiming that it is not necessarily barred by the Constitution...." That's assuming too much - primarily what constitutes torture. But let's run with that - suppose we say that slapping someone around, waterbroading, or, the thing with the fingernails, let's stipulate that's "torture." Being so, which provision of the Constitution "bar[s]" it? As Scalia points out, the Eighth Amendment isn't applicable - the purpose of the action is to obtain information, not to punish, and as the Seventh Circuit pointed out earlier this year in Richman v. Sheahan, conduct without punitive intent generally falls beyond the scope of that clause. So what Constitutional provision do TP et al think is implicated?

"BBC: All I’m saying about it, is that it’s a bizarre scenario, because it’s very unlikely that you’re going to have the one person that can give you that information and so if you use that as an excuse to permit torture then perhaps that’s a dangerous thing." [my emphasis]

So, Althouse. You believe a fact-free opinion containing two conditionals is "pithy" and "cogent"? You must be another one of those modern-liberal word merchants, and I see that you have company here.

Alan, the only rational question in the ticking time bomb scenario is whether you've got the wrong man. But that's assumed by the question, so you're left with the choice between inflicting pain on one individual vs. the deaths of thousands, perhaps hundreds of thousands or even millions depending on what's going to happen and where. Individual rights just isn't an applicable concern to this scenario. And we all understand that calculus, I think: would anyone here have counseled Churchill to evacuate Coventry?

What would the reaction be if it was learned that the US carried out the assassination of terror mastermind Imad Mughniyeh...killed by a car bomb (surely a terror weapon)...in a upscale Damascus neighborhood...near a school...

Who did it? Where is the outrage?

Maybe we did.

If not us, it was probably someone friendly to us.

He was believed to have ordered the truck bombings of the US Embassy and Marine barracks in Beirut that killed 400 people, the hijacking of TWA 847 and the murder of Navy diver Robert Stetham, and two Argentina bombings against the Israeli Embassy and a Jewish center that killed about 125 people.

What is bizarre is that the BBC interviewer is assuming that someone wouldn't stick it in the fingernails in such a situation.

I don't think he is -- I think he may be (in sidelong fashion) hinting at the kind of argument that McCain has made re: torture, namely that if worst comes to worst, it's practically a given that a loyal American is going to end up torturing the man, and he's probably not going to stop with waterboarding. But that we shouldn't allow a focus on one particular set of extreme circumstances to give rise to a general rule permitting torture.

That's how I read this:

All I’m saying about it, is that it’s a bizarre scenario, because it’s very unlikely that you’re going to have the one person that can give you that information and so if you use that as an excuse to permit torture then perhaps that’s a dangerous thing.

I think this is particularly dangerous in the context of the American legal culture, where people are encouraged to "push the envelope" of what is permissible, as it were. Torture is one area where we don't want "creative lawyering" or thinking "outside the box." We want only the most stolid, unimaginative interpretations possible. But given the culture of legal institutions, I don't think that's a possibility for us. So it may be best to leave the question in a deterrent haze of uncertainty, rather than opening it up to all the awful contrivances of legal reasoning.

I wouldn't call the BBC Pomo journalist that witty, Althouse. The schmuck basically asked Scalia a hypothetical then when Scalia responded, called his own hypothetical absurd.

That sort of cunning is not beyond the reach of some liberal poofter that got into Cambridge on old family ties with a 90 IQ and who failed at his reading of law and business so naturally gravitated to the BBC after passing it's ideological screening..*************************

Alan - My opinion, if you're willing to take the noble step to torture someone to save lives then you should be willing to to your noble time in prison.

Well, you have mechanisms.

1. In many areas, a prosecutor would not go after someone who tortured a child molester with a blowtorch to get the location of their child's grave.

2. Then you have jury nullification and the State intimidated by the possibility of mob action if they side with the rights of the evil people.

3. Then you have the possibility of an "Alan World" where people in a position of authority deliberately let masses of people die to CYA - then tell the people that their hands were tied from preventing mass death by ACLU Jews, their two Senators, the President Obama, a group of judges - so blame those truly responsible for the deaths...

They could determine it is coldly logical and in their best personal interest as law enforcement officers or spooks or military - to let huge numbers of American citizens die rather than go to jail themselves. Then count on an enraged public to "fix" the "Alan's World" system by actions directed against ACLU members, Senators, Executive, or judges...

fstopfitzgerald - if he lies, then we're no better or worse off than we were before. You surely don't think that the entire resources of the federal government are going to turn on a dime - you know, the bomb is in New York, he says it's in L.A. and will go off in twenty minutes, you surely don't think that all the federal resources on the east coast will turn around and head west. If we do nothing, we have a 0% chance of getting accurate information from him; if we do something, we have a non-zero chance of getting information. Whether that's good enough depends on how certain you are you've not got an innocent man (the hypothetical we're discussing assumes that away, so it's not at issue here) and how important it is to get accurate information.

Also, I'd like an answer to my comparison, if you wouldn't mind - would you have evacuated Coventry?

I know that whether you have got the wrong man is assumed in the question but in reality it is not always so easy.

If you believe torturing people is ok if that person has information that may save the lives of thousands of your countrymen, then it was ok for the North Vietnamese to torture U.S. Servicemen if the N.Vietnamese believed that doing so would save the lives of thousands of their countrymen.

In your world Cedarford, you would let the people die because the law prohibits you from torturing. In my world, I would sit in a prison cell, feeling noble over the fact that I saved those lives. And also feeling somewhat safe that I don't have to worry about the prison guards torturing me.

then it was ok for the North Vietnamese to torture U.S. Servicemen if the N.Vietnamese believed that doing so would save the lives of thousands of their countrymen

Your analogy fails. We weren't deliberately targeting innocent civillians with WMD. I think the Left has lost the distinction between legal combatants and terrorists. And I don't think they understand how dangerous that is.

Let's suppose a "ticking time bomb" situation did arise: wouldn't the President's pardon power be sufficient protection against prosecution of the torturer in that situation? Why do we have to make torture legal to know that it would be used, and used without adverse consequences to the torturer, in that situation?

And we all understand that calculus, I think: would anyone here have counseled Churchill to evacuate Coventry?

Side note: Actually there are the WW2 version of the 'Truthers' who believe that Winston deliberately refused to evacuate Coventry because in doing so would have revealed to the Germans that Ultra had been comprimised. In fact, the Brits knew a huge raid was coming, even the exact day and time but didn't know the target. Considering the amount of destruction the Luftwafee inflicted on the city, the death toll was relatively minor in comparision to say Dresden or Hamburg.

To me the torture issue is just becoming tedious. There is torturing people for the sake of it (Saddam) torturing for confessions (Hanoi) or torture to obtain info on an upcoming attack (Khalid). We all agree that killing someone for thier wallet is wrong but it is acceptable to kill someone in self defense or in the defense of someone else. Cops do it all the time. The problem is the conventional wisdom of the lefty set is that the Marines in Gitmo are waterboarding for shits and giggles. The reality is that its been done 3 times and actionable intel has been gleaned from it.

I look at it selfishly. Indiana is a flyspeck compared to NY, LA or Boston so chances are our unwillingess to torture probably won't result in Indy getting incinerated. I have always said it will take the loss of a city to finally wake up those who think this is a bumper sticker war.

We are in the realm of public opinion here. If the hypothetical situation occurred and millions of lives were saved, would there be a public outcry over the torture of one person? If said torture ever came to light?

If you believe torturing people is ok if that person has information that may save the lives of thousands of your countrymen, then it was ok for the North Vietnamese to torture U.S. Servicemen if the N.Vietnamese believed that doing so would save the lives of thousands of their countrymen.

Well, first, let me note a shift there -- from "has information that may save" to "believing that doing so would save the lives of thousands, etc." Let's leave it with the first, "information," since the second encompasses much more circuitous routes (e.g. tortured confessions by American servicemen => declining American domestic support for war => Americans go home and cut off funding => South Vietnamese government unable to defend against North Vietnamese army still funded by USSR => victory for North Vietnam, end to war -- just because it worked doesn't make the moral logic sound).

That out of the way, thousands might be difficult, but one can imagine, say, torturing American pilots to identify the next bombing target. And that could save tens or hundreds.

EXCEPT!

That the pattern of torture employed by the North Vietnamese doesn't really seem to match this.

At all.

Taking McCain's experience as an example, he was first beaten and bayonetted by an angry mob. I don't think there was much questioning going on at that point. Then they took him into custody and left him to die, until they realised that his father was a high ranking Admiral (not yet, I think, the supreme commander in the Pacific), and decided to give him medical care, because he could be useful for propaganda. Afterwards, although they did ask him questions about the identify of the pilots in his unit (or squadron or whatever the terminology is), they seem mostly to have spent their time torturing him into signing a confession renouncing the United States.

Besides which, at some point in the five and a half years he spent in prison, you'd expect any information in his possession to have gone stale.

No wonder Huckabee's doing so well -- you people probably think Chuck Norris really is a Texas Ranger.

Not sure what reality based community you're from but according to the latest delegate count, McCain is beating Huckabee by around 600 delegates. In fact, Romney is beating Huckabee and he isn't even in the race.

Unless of course coming in a distant third is the lefty view of 'doing so well'.

The problem is the conventional wisdom of the lefty set is that the Marines in Gitmo are waterboarding for shits and giggles. The reality is that its been done 3 times and actionable intel has been gleaned from it.

fstop: Ah, so torture is moral depending on what clothes the bad guys wear. Thanks for clearing that up....

No. As usual, your intellect is so weak that you must misrepresent my position in order to attack it. Thats why you'll always be nothing better than a lame troll, incapable of providing any substance worth considering.

My point is that the Left wants to extend Geneva protections to the very people Geneva was designed to prevent. Thats going to lead us to a Mercenary War, without ANY legal contraints. Enjoy.

The "ticking bomb" scenario has always seemed silly to me--at least in the context of the current crop of Jihadist terrorists we are facing. These guys thought nothing of flying themselves and their captives into skyscrapers--they knew the were going to die and had a fair amount of time to consider their fate. Why do we think that torture is going to persuade someone like that to talk. They would be like St Lawrence who told his torturers to turn him over so the other side could get done.

We are in the realm of public opinion here. If the hypothetical situation occurred and millions of lives were saved, would there be a public outcry over the torture of one person? If said torture ever came to light?

Unfortunately yes. A significant portion of America clings to the logic that we have no need for a Police Department because there's very little crime in our area

thephantomspitter said..."Then the only reason for torturing him is because we, i.e. you, enjoy it."

Nope. I already answered that, if you read on - the reason for using coercive interrogation (potentially up to and including torture) is to create a nonzero chance of obtaining accurate information, improving on the zero chance that exists otherwise. And whether that's justifiable depends on the totality of the circumstances - it depends what the incentives are on the other side. If the only incentive is to prevent the destruction of San Francisco, for example, sure, torture can't be justified. But suppose it's New York that's under threat? Take New York City out of the equation and that's going to make it very difficult for a Democratic candidate to assemble a majority in the electoral college. (What, you thought it was red states that are in the firing line?) Would you support slapping the guy around if the alternative was millions of deaths and a Republican winning the next couple of dozen Presidential elections for want of an extra 31 votes? Hell, I think both dem candidates would torture him personally sooner than take that risk.

Actually wearing uniforms is one of the requirements to be considered a legal combatant under the Geneva Convention.

Just so you know, during the Battle of the Bulge, German commandos infiltrated Allied lines dressed as US MPs. They redirected traffic leading reinforcements into planned ambushes. More than a few of these Grief commandos were caught and were summarily executed. All in accordance with the laws of war because they were no longer soldiers but saboteurs and not protected by the GC.

thephantomspitter said... "Then the only reason for torturing him is because we, i.e. you, enjoy it."

Nope. I already answered that, if you read on - the reason for using coercive interrogation (potentially up to and including torture) is to create a nonzero chance of obtaining accurate information, improving on the zero chance that exists otherwise. And whether that's justifiable depends on the totality of the circumstances - it depends what the incentives are on the other side. If the only incentive is to prevent the destruction of San Francisco, for example, sure, torture can't be justified. But suppose it's New York that's under threat? Take New York City out of the equation and that's going to make it very difficult for a Democratic candidate to assemble a majority in the electoral college.

You're convinced that people disagreeing with you on this thread want people tortured for sadistic reasons. You know this how? (BTW, we know this because soomeone who participated in the interrogation of KSM and who is opposed to waterboarding said we got actionable intelligence by waterboarding him)

I posted a link to the Forrestal fire on that previous thread. did you look at it?

Yes I did. Heartbreaking, but thank you for that. Again, huge mea culpa from me. I wrongly assumed McCain was being called a "hero" for his time as a POW, but his actions on the Forrestal were indeed heroic.

Also, I did see the disdain you refer to. Not from ground troops to air-support [because Marine Air does CAS missions] but from Marine pilots against Navy pilots who fly air inderiction instead.

I don't know if i'd call McCain heroic for jumping out of a burning plane, that was of course "self-serving", but he went right back to it after that fire and was shot down about 90 days later.It was however smart and decisive. I'd leave it at "he did more than his share and saw more action than most"

Now the Crew Chief with the extinguisher, that was heroic. so were the fire crews reconstituting themselves and going back in with 1,000 pounders going off. that took guts.

It's the fast, articulate speech, the way he's unfazed when the Supreme Court Justice strikes at him with a question, and his instant formulation of a pithy and cogent response. The typical American journalist would harumph something about who's the interviewer and who's the interviewee

This is because the typical American journalist is the product of the typical American school system which routinely graduates people from college with barely an 8th grade education. We indoctrinate our students and do not teach them critical reasoning skills. The typical journalist in America doesn't have a grasp of history, economics or the even the English language.

First, the shift you noted in my comment was unintentional. I did mean to limit it to torturing to acquire information. (Though I suspect that many here who are supportive of torture would be fine with torture if that torture would lead to propaganda victories.)

Second, I knew that the N. Vietnamese tortured for a variety of reasons as McCain's example shows and, specifically, that the maltreatment extended beyond extracting information to save lives. I should have left the proposition as an abstraction: "To the extent that US service personnel are tortured to obtain information that may save lives, the torture is justified."

fstop,Since you are such an expert on torture and the Domino conspiracy;What do the Dominos say about torture? There has been much posting about Huckabee and Domino players, so I want to know what the Dominos think? Any links we can look up?

I see more and more Domino players these days, so maybe there is some sort of Domino conspiracy to take over the world and substitute the Constitution with the religious rules of Dominos.

Some of these contractors work in security, others in food service and transportation.

So some percentage of the 100,000 are working as armed guards. Are they mercenaries? I think this stretches the definition of the word. Private security guards work for banks, hospitals, and universities. Are they mercenaries?

Still, there are two possibly substantial criticisms of such contractors. One is that in a country with a weak police force, private security details may contribute to destabilizing the government. Call this the Blackwater scenario: a security detail repeatedly acts in a criminally reckless way that actively undermines long-term U.S. and Iraqi goals of peace and stability.

But what if the recklessness is episodic and reactive (these "mercenaries" are security guards, after all). That is still a problem, but it is one of lack of oversite, a fundamentally different state-of-affairs than that suggested by the word "mercenaries" with its connotation of private armies persuing private spoils.

The other substantive criticism of security (and other) contractors is that they represent an extra cost to the war. The problem with this criticism is that it is wholly redundant with its parent complaint. Tracking the cost of the war is a long-established component of the anti-war argument.

The fact that some of the cost of the war is represented by independent contractors and some by U.S. government employees is beside the point. Some of the cost of your local emergency response is represented by private ambulances. Even more fundamentally (because this is what some contractors in Iraq are there fore), all of the food in the kitchen of your local fire department is represented by private grocery stores.

"I think he may be (in sidelong fashion) hinting at the kind of argument that McCain has made re: torture, namely that if worst comes to worst, it's practically a given that a loyal American is going to end up torturing the man, and he's probably not going to stop with waterboarding. But that we shouldn't allow a focus on one particular set of extreme circumstances to give rise to a general rule permitting torture."

Balfegor's hit it right on the head. Saying it's permissible in certain circumstances turns torture into an "allowed" activity. Whereas simply making a blanket rule banning it, but understanding that exceptions will arise and configuring the legal system to allow for a range of judgements based on the individual case is a far wiser way to handle things.

------

Just a real world shade on the abstract principle: Even if a servicemember is positive he/she has someone with vital information to stop a massively deadly event, what's the guarantee that torture will extract the correct information from a person, or any at all? And if the level of certainty is so high that you're certain he has the info, who says there's any need to extract any more information? In some cases, it might be possible to induce from the data you already have the range of possibilities and cover them all. That's another argument I have against torture: Who says it'll work? Who says the info will really be that immediately useable?

Look, I'm not saying there are absolutely no situations where you'd torture. Sorry, all, but there are. They're not merely rare, but so exceptional I don't know if I can actually name a real world case where it's ever happened, but it's not impossible. If the classic example ever truly happens - terrorist knows where nuke is at this moment, nuke is heading there Right Now, you need to stop it before it gets there - then we're in the McCain territory here: Someone will bite the bullet and do what's necessary. Hell, I'd do it; if you get a hold of a terrorist and prove to me that he unquestionably, beyond doubt has info that could be used to prevent the massively deadly situation from happening, hand me the damn jumper cables. I'll zap the f****r. And I'll go to jail for it willingly, comforted by the knowledge that x-million people are alive that wouldn't have been.

But don't try to protect me ahead of time by working out that it's permissible in some circumstances. Let me put my faith in the legal system, and if an Executive (i.e. the President) feels it's necessary, then I wouldn't turn down a pardon. Yes, define what is and isn't torture. Yes, establish that war is rough, and that there are degrees of roughness, and that blindfolding and applying restraints is one thing, but drowning and electrocution is another that's over the line. But don't carve out legal torture scenarios. No matter how you cut it, declaring permissible scenarios ahead of time just has too much potential for abuse.

Tibore -- excellent comment. If torture is illegal it doesn't mean it can never happen, only that it can't happen lightly.

There is a slippery slope in permissible law enforcent practices. Wiretaps, RICO asset seizures, use of criminal informants -- all of these have been abused by law enforcement officials, sometimes in the best of intentions, sometimes out of habit and hubris.

Yes, the CIA claims to have waterboarded only three individuals, but they stopped the practice in the face of a huge outcry about the practice. What if there hadn't been an outcry?

Or what if the CIA had been run by a secretive self-justifying neurotic like J. Edgard Hoover?

Re: McCain, I thought I should put in a source backing my characterisation of McCain's position:

Even McCain recognizes there could be rare instances when a president disobeys the law and orders a suspect tortured—say, if Al Qaeda had hidden a nuclear bomb in New York and a suspect involved in the plot had been captured. "You do what you have to do," McCain told NEWSWEEK.

God! Where to start. It is one thing to be for torture. It is quite another to just plain lie to support your disgusting, un-American position.

Cedarford is nothing but a Nazi. I expect it from him.

Simon--your amateur lawyering is showing again:

As Scalia points out, the Eighth Amendment isn't applicable - the purpose of the action is to obtain information, not to punish, and as the Seventh Circuit pointed out earlier this year in Richman v. Sheahan, conduct without punitive intent generally falls beyond the scope of that clause.

Well of course not. As you should well know, suspects actually are entitled to a higher standard of treatment than what is guaranteed by the clause. What kind of shit are you trying to pull that you can actually treat someone who has not been convicted of a crime worse just because it is not punitive?

More than a few of these Grief commandos were caught and were summarily executed. All in accordance with the laws of war because they were no longer soldiers but saboteurs and not protected by the GC.

While your history is correct the conclusions you draw are 100% wrong. The GC do not allow the summary execution of any one. Either does the UCMJ. It is illegal under international and U.S. military law to summarily execute anyone. I have stated this over and over again. Pointed to the section of the GC, UCMJ, and recent Supreme Court decision that makes this abundantly clear, yet for some reason it doesn't sink into your thick skulls. You just absolutely refuse to believe it.

As for us torturing only three people. This of course is completely untrue (although it is nice to finally see you acknowledge that waterboarding is indeed torture). The CIA claims they have used waterboarding only three times and it yielded actionable intelligence. I don't believe either claim and as for the latter there is good evidence it yielded a lot of bad intelligence even if some good intelligence was gleaned.

As for torture in general. When Rumsfeld suspended the Army Field Manual on Interrogation (which was later reinstated) torture was used frequently in both Afghanistan and Iraq and the military admits that at least several people died as a direct result of injuries sustained during interrogation, including at least one Iraqi General. In my book that means they were tortured to death. If you look up the Abu Gharaib pictures you will see an Iraqi who was tortured to death (apparently by CIA contractors who have yet to face any legal consequences) the very night the rest of the pictures were taken. There was also a very well documented case of two Afghanis who were tortured to death (detailed by the NYT) within a week, one of whom was entirely innocent of any connection to the Taliban or AQ. In all these cases (and there were some 30 odd deaths that were labelled suspicious--including some by hypothermia which some of you consider such mild treatment), no higher level officers faced criminal charges and very few were even disciplined.

Yes, the CIA claims to have waterboarded only three individuals, but they stopped the practice in the face of a huge outcry about the practice. What if there hadn't been an outcry?

Well I tend to hold our intel/NSA people with some higher regard than say, the Gestapo, North Vietnamese or even Saddam's Mukhabarrat in that they may waterboard someone to prevent deaths of innocents whereas the former were doing it for shits and giggles.

And to sit nobly in prison for tortue knowing I save lives is bullshit. If we all agree torture is abhorrent and illegal, the lives of millions is irrelevant. It either is or isn't. Don't thank me for saving lives and then lock my ass up.

Again this goes beyond torture for me and its the categorization of terrorists as POWs which they simply are not. Period. They are unlawful combatants and are no different than saboteurs and spies which are NOT NOT NOT protected under the Geneva Convention.

So some percentage of the 100,000 are working as armed guards. Are they mercenaries? I think this stretches the definition of the word. Private security guards work for banks, hospitals, and universities. Are they mercenaries?

The difference is that private security guards in this country are subject to U.S. law. The mercenaries (and the numbers I have seen is about 20--25,000 out of the contractors) in Iraq are beyond the reach of any law--even the UCMJ.

Also, some of the contractors in Iraq are problematic because there have been instances where they have been severely abused by the contracting companies and others are put in extremely hazardous situations (e.g., convoying fuel from Kuwait to Bagdhad)--jobs that were traditionally that of the U.S. Army and now being carried out by nameless, faceless people from third world countries.

Again this goes beyond torture for me and its the categorization of terrorists as POWs which they simply are not. Period. They are unlawful combatants and are no different than saboteurs and spies which are NOT NOT NOT protected under the Geneva Convention.

You can say it all you want, but it doesn't make it true. Please provide proof of your assertion that under any reading of the GC, U.S. or international law, our military or any agent of the U.S. government is permitted to summarily execute anyone under any circumstances.

Freder said While your history is correct the conclusions you draw are 100% wrong. The GC do not allow the summary execution of any one.

Freder, learn to read. I didn't say the GC allowed summary execution, I said the Grief commandos don't receive protection under the GC.

yet for some reason it doesn't sink into your thick skulls. You just absolutely refuse to believe it.

And I have pointed specifically to the GC that does not protect terrorists as POWs or designates them as legal combatants and you simply refuse to believe it. Sabotuers are not protected, spies are not protected. In essence, they are non-people in terms of the laws of war. The reason for the GC was to discourage spies, sabotouers and terrorists. Why do you think they laid out in specific excrutiating detail the requirements to be labeled a legal combatant?

The Grief commandos were executed because they violated the accepted laws of war and both sides did it all the fucking time. Get your head out of la la land already.

Please provide proof of your assertion that under any reading of the GC, U.S. or international law, our military or any agent of the U.S. government is permitted to summarily execute anyone under any circumstances.

And I have pointed specifically to the GC that does not protect terrorists as POWs or designates them as legal combatants and you simply refuse to believe it.

Of course terrorists are not considered POWs or legal combatants. But that doesn't mean that they are not protected by the GC if they are in a conflict covered by the GC.

Everyone, no matter how despicable or what crimes they commit who is involved in a conflict covered by the GC is protected by the GC. The question is what rights they have under the GC. The GC doesn't just cover POWs and legal combatants. That is what you don't understand and refuse to believe. Read it again.

You also ignore the fact that in addition to the GC and other international agreements, our soldiers and government employees are constrained by U.S. law. The UCMJ strictly prohibits summary execution (in fact it requires humane treatment of all captives).

He may be tedious, but he's the only one on the Left who claims he would not ask the government to waterboard a terrorist to save his family, his city.

All the others on the Left want exceptions to the law when their own interests are at stake.

With a "wink/nod" that they'll pardon after-the-fact. I think our intelligence officers deserve better than that. I wouldn't blame them for sitting on their hands. I certainly wouldn't risk my career to save a blue city-state like Berkeley.

BTW Freder, is your wife still serving in Kuwait? Would be interesting if you [or she] could keep us up to date - daily routine, concerns, scuttlebut etc.

Everyone, no matter how despicable or what crimes they commit who is involved in a conflict covered by the GC is protected by the GC.

Could you cite the portion of the GC that covers illegal enemy combatants? I don't have enough respect for Geneva to look it up. I think its out-dated and needs to be revised before it becomes irrelevant.

The Grief commandos were executed because they violated the accepted laws of war and both sides did it all the fucking time.

I am not going to pretend to know what the code of military conduct required in 1944, but I do know that if field commanders carried out such executions under the current UCMJ, it would clearly be murder. (Whether the circumstances would warrant bringing of charges or sweeping the incident under the rug is a whole other matter entirely.)

As I have pointed out numerous times, as early as 1900, the British Army charged, tried, convicted, and executed its own soldiers (including an officer) for summarily executing Boer prisoners in the field.

As I have pointed out numerous times, as early as 1900, the British Army charged, tried, convicted, and executed its own soldiers (including an officer) for summarily executing Boer prisoners in the field.

Guess they didn't think the forced relocation of civilians and concentration camps they set up for them warranted any judicial review though.

I don't bother to respond to Freder... However, I think the answer is somewhere in the middle and I'm not going to bother to go look it up again.

I think Spies and Sabetours (sp?) are covered in GC3 to the extent that it says something like (and I'm giving you this from memory)

1. Spies etc are not entitled to the full protects accorded POWs2. The detaining party can try them for their crimes (and it doesn't prescribe how or what needs to be done)3. and execute them IAW the detaining parties laws.

point being, if your legal code (and ours doesn't) says, that if martial law has been declared, summary court martials and executions in the field are authorized, then yes, you can conduct a drumhead court and shoot the SOB. However that isn't our code within the UCMJ.

Has anyone seen Trooper lately? These trolls are so lame, its GOT to be parody

I doubt it is Trooper. His sock puppets would at least have a sense of humour and be somewhat entertaining. This drawer of sock puppets is distinctly tedious, boring and repetitious. Undoubtedly a product of our American education system and I'm guessing some snotty about 23 to 27yr old: a product of the indoctrination process conducted by our institutions of higher learning (ha ha there is a misnomer)

Well since Trooper York is AWOL, I'll have to bring you these lines from "Dirty Harry"

De Georgio: You need any help? Harry Callahan: Go on out and get some air, fatso. [turns to killer] The Killer: [pleading] Please. Stop. No more! Can't you see I'm hurt? Harry Callahan: The girl, where is she? The Killer: [crying with reason] You tried to kill me. Harry Callahan: If I tried that your head would be splattered all over this field. [demanding] Harry Callahan: Now, where's the girl? The Killer: [cries] I- I have rights. Why can't you people just leave me alone? Harry Callahan: Where's the girl!

point being, if your legal code (and ours doesn't) says, that if martial law has been declared, summary court martials and executions in the field are authorized, then yes, you can conduct a drumhead court and shoot the SOB. However that isn't our code within the UCMJ.

Just to clarift Sarge, I was pointing out a historical incident. Now granted, the version of the USCMJ may have differed in 1944, my point has always been that terrorists should be treated in no manner different than spies or sabotuers.

Again I am more inclined to follow the reality of the situation. Freder may think I condone the torture of execution of jihadists and to the extent that it is necessary to save innocent lives yes. Torture for the sake of it no. Its all well and good to cite the GC, international law and the USCMJ but as you know, the realities of warfare sometimes make those inconvenient to victory. Lets faces it, we firebombed civilian population centers in Germany to stymie production and destroy the will to fight. In the Pacific we essentially did the same thing in addition to unrestricted sub warfare. We sank everything that the Japanese could float . So when some like to think we defeated fascism without resorting to torture, it tells me how little understanding there is about what we actually did to defeat the Nazis and Japanese.

I agree with Fen that the current rules need to be revised to reflect the realties of dealing with terrorists.

Freder wrote: The difference is that private security guards in this country are subject to U.S. law. The mercenaries (and the numbers I have seen is about 20--25,000 out of the contractors) in Iraq are beyond the reach of any law--even the UCMJ.

There's some truth to that statement, but it is an equivocal truth. Any contractors directly involved in troop support are subject to U.S. criminal law. Blackwater contractors designated as supporting U.S. diplomats, are not. (This makes the "mercenary" terminology rather ironic, since the security guards with immunity are specifically those not working on military operations.)

Legislation to put all contractors under U.S. criminal law was passed overwhelmingly in the House last fall; it doesn't appear to have passed the Senate.

In seeking immunity for contractors, the administration is requesting protections for the 154,000 civilian contractors working for the Defense Department in Iraq; most carry out such duties as driving trucks, preparing meals and the like. The administration says it depends heavily on those contractors, including about 13,000 private security contractors working for the Pentagon.

I'm late to this discussion but view the question from a historical, not legal angle. Normal combatants in uniform will act honorably almost all the time. When captured, they will agree not to do mischief if released, and will behave, even to the extent of not rejoining the fight. This was incredibly common before the 20th century. It is not unreasonable based on hundreds of years of European military history to believe the GC should apply to these type of combatants. In WWII the Japanese certainly didn't comply.

The difference here, is that the avowed jihadists would detonate a bomb on the way out of Guantanamo if they could. They are really an enemy wherever they are since they belong to no country or army. They are a continual real and immediate danger in contradiction to the traditional POW who though obligated to attempt escape, will not harm a captor as if they are still on the battlefield. The jihadist is always on the battlefield. You are allowed to shoot an enemy on the battlefield. I can't quite get my mind around how many in western countries, including ours, can twist law and logic to afford these people rights and protections of any sort, let alone when our nation and its people face an immediate threat. I like Mr. Spock's philosophy, "The needs of the many outweigh the needs of the few or the one" especially when the "many" is us and the few are "them".

The whole 'if they had a nuke somewhere' scenario has been used as a cover for dozens, perhaps hundreds of cases of torture that we have already done, most if not all against prisoners who did not have any such knowlege or information, and in some cases may well have been innocent (certainly we simply presumed them to be guilty).

You can't excuse real actions that have already taken place by asking a hypothetical question about the future, and it seems as though the purpose of the hypothetical is most likely to set things up for more such actions.

History will judge our singular use of torture (something this country never engaged in before) during this administration as shameful and those who supported it or failed to speak out against it as moral cowards, as well it should.

Liberal logic. If it's ever been done even once, then it must have been done "hundreds" (while you're making stuff up, why not tens of thousands?) of times. I have seen commenters on this very site claim that torture is rampant. They can't qute come up with a cite, but it just feels right to make such ludicrous assertions.

Eli: History will judge... those who supported it or failed to speak out against it as moral cowards

I don't agree. Those of us who support waterboarding do so grudgingly - like a command decision, its a tough call that has to be made. The choice is between the lesser of two evils:

Do we stain our souls with blood so that others have the luxury of retaining their humanity [we know it will damage us and our country] to prevent the destruction of millions of lives in Los Angeles and the retaliatory destruction of millions in Tehran?

Or do we take an easier way out, allow the destruction of millions, abdicate any responsibility we had as Americans to safeguard the lives of our countrymen, abdicate any responsibility we had as Humans to safeguard the lives of innocents in Tehran?

Please understand, I'm not trying to provoke you, but if you feel no responsibility for these lives or for civilization, then its an easy call to make - OF COURSE torture should never be considered. It takes no moral courage for those who would make such a call, because they will convince themselves they were not responsible for the resulting loss of life, even though they had the power to prevent it.

Fen - it's no wink and a nod to say that if there were in fact a ticking bomb scenario the pardon power would suffice. It's recognition that the ticking bomb scenario is an exceedingly unlikely if not fantastic scenario and that we shouldn't legislate based on exceedingly unlikely if not fantastic possibilities.

it's no wink and a nod to say that if there were in fact a ticking bomb scenario the pardon power would suffice.

Well, you're conflating two different approaches of the anti-torture side.

There's the legal argument you just made, which is valid: "If we legalize waterboarding, we'll get mission creep and it will be used more frequently than needed and also be more susceptible to abuse. Safer to keep it as a trump card for that once in a lifetime scenario".

Then there's the moral argument, which is hypocritical: "Torture is never jsutified and should be illegal... unless its my life, my family, my city at risk. Then I want some poor SOB to risk his career and liberty by breaking the law, with the understanding that we'll try to pardon him afterwards. We want it both ways - taking the moral high ground while hoping someone else stains their soul with blood to save us from our own idealism."

Its the latter position I find repugnant. Although with both, I question who has the right to decide who lives and dies: I'm not allowed to have an agent waterboard to save my platoon from an IED attack, but some elite in NYC can request it to save his city?

Morally and legally, torture should either be legal or illegal, without middle ground, and with equal protection under the law. You should not deny me the resources to save my platoon [or some "irrelevant" American city], and then turn around and use those same resources to save Times Square.

I don't know what the hell you are all talking about when you say that cites have never been provided that torture frequently occurred early in the wars in Iraq and Afghanistan. I have presented plenty of cites. You just pretend they don't exist or belittle certain torture methods as not being torture at all.

This is tiresome but here is another. Of course you will ignore it or dismiss it. Similarly, I have provided the links to the GC provisions many times, yet you still don't seem to understand that summary execution is prohibited under the GC.

Heck, the Drill SGT's wife is in the JAG Corps. He could be honest and just ask her whether I am right about this or not. Then he would know that the GC requires due process--never summary execution. But I bet he already knows that, because of course he was, after all, a drill seargent.

I'm not allowed to have an agent waterboard to save my platoon from an IED attack, but some elite in NYC can request it to save his city?

Actually Fen, the military has already made this decision. Waterboarding--or even inhumane treatment--is not justified to save your (or anyone else's) platoon from an IED. Read the Field Manual on Interrogation. It explains why the military has decided this. I have also linked to this many times also.

This is tiresome but here is another. Of course you will ignore it or dismiss it

Actually I will from here on out.

Sorry, but whoever Global Policy Forum is, their stuff is bullshit taken out of context and presented without any attempt at balance. I read about or have been in the types of operations they discuss in their "Cities" article, and they dress it up with such bias that I find their report suspect. Maybe they don't understand the why behind the what, but it reads like propaganda.

The scientist plunged a metal object into the helpless victim's arm, ignoring his screams and pleas for help, while others restrained him